(영문) 의정부지방법원 2018. 2. 6. 선고 2015가단125388 판결

The Defendants jointly pay to the Plaintiff the amount of KRW 83,20,000 as well as the amount of KRW 5% per annum from December 18, 2012 to the rendering of the judgment, and from the next day to the 15% per annum.

Reasons

1. Facts of recognition;

(a) Acquisition of apartment sale rights;

1) Defendant B District Housing Association, C District Housing Association, and D District Housing Association are the Joint Housing Association that implemented a reconstruction project on the E and 202 parcels of Namyang-si, Namyang-si (hereinafter referred to as “the entire said Housing Association”).

2) At around 2001, F transferred the F’s ownership of the land in the above business area to Defendant B-house association, and received KRW 89,874,00 from Defendant B-house association, and supply 2 households (management number 45532, 45533) of the 45-type apartment complex.

(b) Transfer of sales right to apartments;

1) On January 5, 2005, G’s representative director G, an agent company implementing the said reconstruction project, concluded an investment contract for the soup project with I (F) on January 5, 2005, and the F’s proxy delegated F’s authority to dispose of the right to sell one unit of apartment-type 45 square meters (management number 45533) out of the investment funds under the said investment contract.

2) On April 12, 2005, the Plaintiff entered into a contract with H on April 12, 2005, to sell 45 square-type apartment units (management No. 45533) at the price of KRW 262 million (hereinafter referred to as "right of sale in this case"; hereinafter referred to as "transfer contract of the right of sale in this case"). At the time of the above contract, H delivered the F's certificate of personal seal impression and the copy of resident registration certificate transferred from F and the original copy of the contract between F and the Defendant District Housing Association (management No. 45533), and the Plaintiff paid KRW 260 million to H on July 23, 2002.

(c)assigning apartments by lot;

On November 29, 2005, Defendant B’s housing association convened a member of the association and opened a lot. As a result of drawing lots, the real estate listed in the attached list (hereinafter “instant apartment”) was allocated with respect to the right to parcel out of this case.

D. Conclusion of the apartment sale contract of this case

1) On August 16, 2006, F drafted a letter of commitment that F did not sell the instant sales right to the Defendant’s housing association and the Defendant Hanhwa Construction Co., Ltd., a contractor, (hereinafter “Defendant Hanhwa Construction”).

2) On August 22, 2006, F entered into a sales contract to purchase the apartment of this case (hereinafter referred to as the "sale contract of this case") with the Defendant’s housing association and the Defendant Hanhwa Construction, with the purchase price of KRW 293.8 million (the price increased by the increase in size from 45 square to 46 square meters at the beginning of the beginning of the year, and the sale contract of this case was entered into between August 31, 2008 and August 31, 2008, F additionally paid KRW 76.8 million (the purchase price of this case deducting the advance payment recognition amount of KRW 293.8 million from the above purchase price of KRW 293.8 million). Accordingly, the sale price of the apartment of this case was fully paid.

3) On October 23, 2008, the Defendant’s housing associations completed each registration of initial ownership relating to one-third of each of the instant apartment units.

4) On November 18, 2008 with respect to the apartment of this case, the provisional disposition order prohibiting the change of the name of the purchaser who purchased the apartment of this case with the plaintiff, the debtor F, and the third debtor's housing association was issued on November 18, 200, and around that time, the original copy of the provisional disposition order was served on the above defendants.

E. Conclusion of mortgage contract

The National Agricultural Cooperative Federation (hereinafter referred to as the "Agricultural Cooperatives") shall pay 37 million won to F on September 5, 2008 to F on September 5, 2008.

In making a loan to F and the apartment of this case as security, the lower right contract was finalized with the maximum debt amount of KRW 380,400,000,000.

F. Dissolution of the Defendant’s association

On November 5, 2008, the Defendant’s housing associations received approval from the mayor of Namyang on January 7, 2009 pursuant to Article 32 of the Housing Act, Article 37 of the Enforcement Decree of the Housing Act, and Article 17 of the Enforcement Rule of the Housing Act.

G. The progress of the relevant lawsuit

1) On December 3, 2008, the Plaintiff filed a lawsuit against F on April 12, 2005 against F to seek the implementation and delivery of the procedure for the alteration of the name of the purchaser on the ground of the transfer of the right to sell the instant apartment on April 12, 2005, and against the Defendant’s housing associations to seek the implementation of the procedure for the transfer registration of ownership on the ground of sale on August 22, 2006 (Korean Government District Court 2008Da11846, hereinafter referred to as “the first lawsuit”), and was dismissed from the above court on July 8, 2009, but the appellate court (Seoul High Court 2009Na6893, Seoul High Court 2009Na6893) declared that F on January 15, 2010, the appellate court ordered the Plaintiff to implement the procedure for the alteration of the name of the purchaser on the instant apartment on April 12, 2005 (hereinafter referred to as “the above judgment of the appellate court”).

2) On January 18, 2011, Nonghyup filed a lawsuit against F to seek implementation of the procedure for the registration of the transfer of ownership (U.S. District Court 201Ga1128, hereinafter referred to as “the second lawsuit”) against F on September 5, 2008 against the obligor, the maximum amount of claims 380,400,000,000 for the creation of a mortgage contract on September 5, 2008, against the obligor F, and against the obligor’s establishment of a neighboring mortgage by the Defendant F, and against the Defendant’s housing association and Hanhwa Construction on August 22, 2006 (U.S. District Court 201Ga11128, hereinafter referred to as “the second lawsuit”).

A decision was rendered, but some of the cited judgments were rendered on the defendant's housing associations, and the plaintiff who participated in the above judgment and the plaintiff who participated in the first instance court as an independent party. The appellate court (Seoul High Court 2012Na6204) decided to recommend reconciliation on November 28, 2012 (hereinafter "the decision to recommend reconciliation in this case") and decided on December 18, 2012 on the defendant's housing associations and the defendant's Hanhwa Construction (hereinafter "the decision to recommend reconciliation in this case").

3) The Plaintiff filed a complaint with F and I in relation to the instant apartment, and F and I were indicted for committing an attempted breach of trust by Suwon District Court 2013 Godan120, Suwon District Court 2013 Godan120, but the said court acquitted F and I on August 14, 2013. After which the Prosecutor appealed, the appellate court (U.S. District Court 2013No3941) declared the Defendant guilty of the attempted breach of trust by F and I on August 25, 2014, and sentenced F and I to a suspended sentence of two years for each year and six months, and the said judgment became final and conclusive (hereinafter referred to as “final conviction against F”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3 (including where there is a serial number), evidence 5-1 to 11-2, Eul evidence 1-1 to 5, Eul evidence 1-1 to 1-5, Eul evidence 1-2 and the purport of the whole pleadings

2. Determination on this safety defense

The defendant's association submits as evidence the certificate of dissolution authorization and public notice of the association, which is the argument that the defendant's association should dismiss the lawsuit of this case against the defendant's association, since the defendant's association's ability to be a party by obtaining dissolution authorization from the market of South-North Korea.

The defendant's association can be acknowledged on November 5, 2008 when the cancellation of the housing association was authorized by the Southyang market on January 7, 2009, after the resolution of the general meeting of members of the association was made on November 5, 2008. However, the Housing Construction Promotion Act provides that the housing association dissolution was authorized by the South Yangyang market.

The housing association established by the association shall be a non-corporate body and shall be deemed to have the party ability within the scope of the purpose of liquidation until the liquidation work is completed, not immediately terminate the party ability, but until the liquidation work is completed. Thus, the defendant's association shall not be deemed to have completed the liquidation work unilaterally by the defendant's association, and there is no other evidence to prove that the defendant's association completed the liquidation work. Thus, the defendant's association shall still have the party ability within the scope of the purpose

Therefore, the above argument of the defendant's association is without merit.

3. Judgment on the merits

A. Determination on the cause of the claim

1) The plaintiff's assertion

The Defendants concluded the instant contract with F to demand the Plaintiff, who is the purchaser of the instant apartment, to issue the contract (hereinafter referred to as the “instant notice”) with the Plaintiff. ② The Defendants, through the instant lawsuit, knew that the Plaintiff was the legitimate purchaser of the instant apartment through the instant lawsuit, neglected to perform the duty of care and good faith to allow the Plaintiff to sell the instant apartment, thereby resulting in the instant lawsuit. Ultimately, the instant contract was concluded with the Plaintiff to pay KRW 160 million to Nonghyup. Accordingly, the Defendants jointly agreed to recommend the settlement of the instant case, and thus, jointly agreed to pay KRW 832 million to the Plaintiff (i.e., KRW 160 million) and delay damages incurred to the Plaintiff.

2) Determination

A) Determination as to whether the Defendants’ conclusion of the instant sales contract with F constitutes tort against the Plaintiff

(1) Relevant laws

It is as shown in the attached Form.

(2) Determination

Even if there is a prohibition of resale of a certain house under the Housing Act from the time of sale in lots for a certain period of time, it does not purport that the purchaser cannot resist the business entity for the sale in lots, and the validity of the resale contract between the parties to the sale in lots is also null and void (see Supreme Court Decision 95Da47343, Jun. 27, 1997). In full view of the overall purport of the pleadings in each of subparagraphs 1 through 4 of the evidence No. 4-1, Aug. 7, 2006, the Plaintiff sent to the Defendants a certificate to the effect that the Plaintiff requested the Plaintiff to issue the certificate of sale in lots since it had concluded the contract to sell in lots with the Plaintiff on August 22, 200, the Plaintiff's issuance of the certificate of sale in lots to the Defendants, even though the Plaintiff entered into the contract to sell in lots with F, the Plaintiff's right to purchase in lots was not effective as the whole legal principles and the purport of the sale in lots No. 1, as stated in the agreement of this case No. 52.

Even if the plaintiff or F did not have obtained the approval of the transfer contract of the right to sell the apartment of this case from the defendants, and the contract of the transfer of the right to sell the apartment of this case violates the provisions of the restriction on the transfer of the right to sell the apartment of this case under Article 41-2 (1) 1 of the Housing Act, and the plaintiff as the purchaser cannot oppose the defendants, who are the seller of this case, on the ground that the contract of the transfer of the right to sell the apartment of this case or the notification of this case cannot be asserted. Thus, it is difficult to view that the defendant's act of entering into the sale contract

B) Determination as to whether the Defendants’ duty of care or good faith exists against the Plaintiff

As seen earlier, the Plaintiff cannot assert his right as the purchaser of the right to sell the apartment in this case to the Defendants. Furthermore, the Plaintiff participated in the lawsuit No. 1 in this case but lost the Defendant’s housing association. It is difficult to deem that the Defendant association except F or the Defendant Han Han Construction did not have any obligation under the contract or the good faith principle through the lawsuit No. 1 in this case or related judgment against the Plaintiff (the same shall apply to the case where the sales contract in this case is a reserved contract for the right to cancel).

C) Therefore, the Plaintiff’s assertion does not need to be examined with respect to the remainder of the claim for damages ( even if the instant lawsuit against the Defendant C Regional Housing Association was pending by public notice, the Plaintiff’s assertion should be recognized by evidence, and unless there is no evidence to acknowledge it, the Plaintiff’s assertion against the Defendant C Regional Housing Association is without merit).

Then, the plaintiff's ground for claim against the defendants of this case is recognized, and the plaintiff's defense is examined.

B. Determination of the extinctive prescription defenses of Defendant B’s regional housing association, D regional housing association, and Hanhwa Construction

1) The defendants' defenses

On August 22, 2006, when the instant contract was concluded by the Defendants, the Plaintiff filed the instant lawsuit after the lapse of the three-year extinctive prescription period, even though it was known that the damage occurred on December 18, 2012, which was the date when the recommendation was made for the settlement of the instant case, due to the Defendants, and the Plaintiff’s claim for damages became extinct upon the lapse of the said three-year statute of limitations.

2) Determination

A) The claim for damages caused by a tort shall expire if it is not exercised within three years from the date the victim became aware of the damage and the perpetrator. In this case, the "date of knowing the damage and the perpetrator" under Article 766 (1) of the Civil Act, which serves as the starting point for the short-term extinctive prescription for the claim for damages caused by the tort, shall be reasonably and reasonably recognized as to the requisite facts of the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the proximate causal relation between the occurrence of the harmful act and the damage. Whether the victim is deemed to have actually and specifically recognized the requisite facts of the tort shall be determined by taking into account the various objective circumstances in each individual case and the situation in which the claim for damages is practically possible (see, e.g., Supreme Court Decision 200Da2249, Jun. 28,

B) Comprehensively taking account of the aforementioned facts and the overall purport of the arguments as seen earlier, the Plaintiff sent to F on August 22, 2006, the date of the conclusion of the instant sales contract, a certificate to the effect that the Plaintiff would be held liable for civil and criminal liability while resisting to F on August 22, 2006 that the instant sales contract was concluded with the Defendants. The Plaintiff reached F on November 18, 2008; the Plaintiff issued a provisional injunction against the change of the name of the buyer against F and the Defendant housing associations; and thereafter, the Plaintiff thereafter filed an objection against F and the Defendant housing associations.

The facts of the lawsuit No. 1 and the fact that the decision of recommending reconciliation between the Plaintiff and the Defendants on December 18, 2012 became final and conclusive. It is reasonable to deem that the Plaintiff was aware of the damage and the perpetrator caused by the instant tort on August 22, 2006 or at the latest on December 18, 2012, which is the date when the decision of recommending reconciliation was made, at the time of the instant parcelling-out contract, at the time of the instant parcelling-out contract, and it is apparent in the record that the lawsuit in this case was filed on December 18, 2015, which is obvious that three years have elapsed from the said initial date, and thus, the Plaintiff’s damage claim against the Defendants was terminated and terminated.

Therefore, the above defendants' defense of extinctive prescription is justified.

On August 25, 2014, the Plaintiff asserted that the Plaintiff was aware of the damage and the perpetrator caused by the instant illegal act committed on August 25, 2014, which was sentenced to the judgment of conviction against F. However, the Plaintiff’s claim of this case is seeking damages under the civil law against the Defendants, not F, and the amount of such damages is also based on the decision of recommending reconciliation. As such, it is difficult to recognize the date the judgment of conviction against F was issued as the date when the Defendants became aware of the damage and the perpetrator caused by the illegal act committed against the Defendants. Therefore, the Plaintiff’s claim

4. Conclusion

Thus, the plaintiff's claim against the defendants of this case is without merit, and it is dismissed. 2)

Judges

Judges Shin Young-ju

Note tin

1) Defendant C Regional Housing Association did not have a defense of extinctive prescription since the process of service by publication.

2) If the Plaintiff’s claim for damages against the Defendants is recognized, the Defendant C Regional Housing Association did not set up a defense of extinctive prescription, and thus, the Plaintiff’s claim against the Defendant C Regional Housing Association may be accepted. However, the determination on the ground of extinctive prescription objection is a family determination, and its conclusion is same.

Site of separate sheet

Related Acts

/ Housing Act (amended by Act No. 7600 of July 13, 2005)

Article 41-2 (Restrictions, etc. on Act of Resale Housing)

(1) Where the status of being selected as an occupant of a house (referring to the right, qualifications, status, etc. to move into the house concerned after being selected as an occupant; hereinafter the same shall apply) or a house falls under any of the following subparagraphs, no project undertaker may resell (including sale, donation, and other acts accompanying changes in rights, but excluding inheritance; hereinafter the same shall apply) such house or arrange the resale thereof within a period prescribed by Presidential Decree not exceeding five years. In such cases, the period of restriction on resale may be prescribed otherwise by Presidential Decree for each region in consideration of the current status of demand and supply of the house, the concern of speculation, etc.:

1. Status of being selected as residents of housing constructed and supplied within the overheated speculative district;

2. Housing subject to the upper price ceiling system and the status of being selected as an occupant of the relevant housing;

(2) The provisions of paragraph (1) shall not apply to a person who has been selected as an occupant or a person who has been supplied with a house subject to the upper limit system for selling prices is deemed inevitable to resell it due to his/her living conditions, etc. as prescribed by Presidential Decree: Provided, That for a person who has been provided with a house subject to the upper limit system for selling prices, the Korea National Housing Corporation (referring to a local public corporation where the person is a local public corporation; hereafter the same shall apply in this Article

(3) Where a project operator resells the status of being selected as an occupant of housing in violation of the provisions of paragraph (1), one-year maturity of a financial institution under the Banking Act on the amount of occupancy already paid.

When the sum of the average interest rates on time deposits (hereinafter referred to as "purchase costs"; hereafter the same shall apply in this Article) is paid to the purchaser, the project operator shall be deemed to have acquired the status of being selected as the relevant occupant on the date of payment, and the provisions of the proviso of paragraph (2) shall also apply mutatis mutandis to the purchase costs in the case that

(4) Where a project undertaker supplies a house subject to the upper price ceiling system, he/she shall additionally register a prohibition on transfer of the ownership of the relevant house to a third party in the ownership register.

A person shall be appointed.

참조조문

참조판례

-대법원 1997. 6. 27. 선고 95다47343 판결